Security and liberty or security versus liberty?

A major research project on European security policies has identified an urgent need to continue safeguarding fundamental rights and civil liberties. Focusing on the EU’s Area of Freedom, Security and Justice (AFSJ) but also addressing external security (e.g. in relation to the war on Iraq), the research project provides a critique of what it calls the ‘illiberal practices of liberal regimes’ in the European Union and puts forth a sweeping set of proposals to address them. Among the study’s proposals is a call to establish a Commissioner for Fundamental Rights and to restructure the European Commission’s Directorate General for Justice, Freedom and Security, thereby creating a new directorate general for fundamental rights. While the restructuring of the DG for Justice, Freedom and Security is not currently foreseen, the first recommendation proposed by the study contributed to the establishment of the Commissioner for Fundamental Rights.

The proposals were developed by a 23-member multinational consortium participating in an EU-supported research project called CHALLENGE (The Changing Landscape of European Liberty and Security). After five years of research, the consortium published its final policy recommendations (in addition to several books and peer reviewed articles) last September, just before the European Council’s adoption of the Stockholm Programme which reshapes the policy area of freedom, security and justice. The consultative process leading up to the Stockholm Programme included input from the CHALLENGE project.

Examining the theoretical underpinnings of EU security policies and pursuing empirical research on various cases, the study highlights the risk of approaching liberty and security as separate values to be balanced against one another. This ‘balancing’ approach, the CHALLENGE researchers contend, favours an interpretation of security tantamount to coercion, surveillance and control – an interpretation that expresses itself at times in exclusion and violence. The consortium notes that the balancing metaphor entered EU discourse after the 2001 terrorist attacks and helped shape the policy agenda that was in place before the Stockholm Programme.

An overemphasis on security risks, the researchers argue, creates a climate that favours measures beyond democratic accountability. The consortium’s findings challenge that approach, suggesting that security is achievable only through the protection of fundamental freedoms by the rule of law. The policy report concludes that fundamental rights should be the guiding principle for the EU’s Area of Freedom, Security and Justice and be even more central to EU external action.

In its final policy document the CHALLENGE project offers 27 EU-level recommendations, conveniently organised into five thematic groups along with a section on oversight mechanisms.

Key recommendations include:

Borders

  • Create an EU border monitor to ensure that EU border controls are consistent with EU law and the Charter of Fundamental Rights.
  • Assure that the principles of transparency and accountability are thoroughly applied to FRONTEX (European Agency for the Management of Operational Cooperation at the External Borders).
  • Foster respectful and non-discriminatory behaviour by border guards and custom officers towards travellers regardless of their citizenship, ethnicity or purpose of travel.

Asylum

  • Modify the common European asylum system (CEAS) so that the country in which an asylum-seeker makes his or her protection claim is the one responsible for determining the substance of that claim.
  • Give asylum-seekers the right to work and study in a member state following a presence there of six months or less.

Immigration

  • Urge member states to stop mandatory integration programmes. Assure that civic integration programmes on ‘national and European values’ do not conflict with fundamental rights and non-discrimination.
  • Facilitate the inclusion of Islam within the public spheres of European countries by changing the portrayal of Islam in political discourses, ending its ‘ghettoisation’ and disentangling the discourse on Islam from international politics.
  • Assure the right of families to live together and for children to be with both of their parents.

Data protection

  • Build privacy rules into the programs that run EU databases and systems of information (data protection by design).
  • Engage objective and independent organisations to carry out impact assessment studies of databases before they are set up.

Criminal justice

  • Do not adopt further legislation in the field of criminal justice unless it provides for standards for the rights of defence and of fair trial that are at least as high as those offered within the context of the Council of Europe.
  • Create a permanent EU assessment board to monitor the quality of Member States’ criminal justice systems and verify whether they fulfil international and European standards on the rule of law.

Mechanisms for evaluation, accountability and scrutiny

  • Develop an evaluation mechanism on the internal and external facets of the Area of Freedom, Security and Justice (AFSJ). The local dimension could play a decisive role when monitoring implementation and results in the scope of the AFSJ.
  • Expand and promote the use of existing monitoring tools on fundamental rights and the rule of law. The impact of any AFSJ policy measure on the liberty and security of individuals should be carefully (and independently) assessed.

CHALLENGE - The Changing Landscape of European Liberty and Security (duration: 01/06/2004 – 31/05/2009) was a Specific Targeted Research Project funded under the 6th Framework Programme for Research of the European Union, Thematic Priority 7 – Citizens and governance in a knowledge-based society.

See: http://www.libertysecurity.org/

Contact: Prof. Didier Bigo, didier.bigo.conflits@gmail.com; Prof. Elspeth Guild, elspeth.guild@ceps.eu; Dr. Sergio Carrera, sergio.carrera@ceps.eu